Worker knew she was violating store policy, but store let her work during investigation
A British Columbia arbitrator as reduced the suspension of a liquor store employee for taking product without paying from three months to 45 days.
The worker was employed as a store clerk with the BC Liquor Distribution Board (LDB) since 2006. She eventually began performing responsibilities as a manager-on-duty (MOD), first on a relief basis and later on a full-time basis.
The LDB had a policy requiring employees to paid for product in full at the time of purchase. If only one employee was working a shift, they had to wait until the shift crossover to purchase product from another employee. If they were the only employee for the entire day, there was a process that involved notifying the regional manager and providing a copy of the receipt.
On Nov. 16, 2020, the worker was working as an MOD. At the end of her shift, she felt like having a glass of wine, so she decided to take a bottle home. She knew the process outlined by the policy, but she decided that she would take the wine and return the next morning to apologize and tell the store manager what she had done.
Worker was tired
She didn’t pay for the wine at that time because it had been busy during that day, she had worked with new auxiliary staff, there were computer issues, she was tired, and she had already shut down her register. The worker admitted to having second thoughts, but took the wine anyway.
The next morning, the worker came to the store, although it was her day off. She told the store manager and a co-worker about taking the wine and that she was back to pay for it. She mentioned store cameras could prove that she was paying for it.
The manager reported the worker’s actions to the regional manager and the LDB started an investigation. However, it allowed the worker to continue to work as a store clerk and a relief MOD, as the regional manager didn’t want to make a “pre-determined outcome” until the investigation determined what had happened.
Video surveillance showed the worker returning a bottle of wine to the shelf and then taking a different bottle and putting it into her backpack.
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No apology
During the investigation, the worker said that she would not do it again, but she fell short of apologizing. The regional manager determined that the worker’s actions were theft, which was serious in a retail environment.
On April 21, 2021, the worker was given a letter of discipline suspending her without pay for three months and banning her from relief MOD duties for an additional three months. The letter noted that theft of product was serious misconduct providing just cause for dismissal, but the LDB considered that she acknowledged her actions and had a lengthy service record.
The letter also referred to a breach of confidentiality that occurred on Jan. 21, 2021, that also breached LDB policy, but the LDB accepted that she had been “overwhelmed while bereaving the loss of a family member.” The mitigating factors supported a suspension in lieu of termination, the letter said.
The union grieved the dismissal, arguing that the worker didn’t intend to steal product and did not commit theft. Although the worker violated the purchase policy, the three-month suspension was excessive in light of mitigating factors such as her personal circumstances and forthright admission, said the union.
The LDB said that the worker intentionally took product from the store, knowing it was wrong. It withdrew the allegation of breach of confidentiality, but it maintained that the discipline was appropriate.
Other options
The arbitrator noted that the worker had other options – she could have left a note or money when she left, she could have called her manager, or she could have gone to another liquor store that was a couple of blocks away and was still open at the time. However, she made a “conscious decision to knowingly take unpaid product home without notifying or seeking direction or authorization from the employer, and subsequently seek forgiveness,” the arbitrator said.
The arbitrator found that the worker was forthright about her actions, but there the manager and another employee in the store on Nov. 17 were consistent in that she didn’t explicitly apologize. She also didn’t apologize during the investigation, the arbitrator said.
The arbitrator also found that the worker acknowledged that she knew that taking unpaid product home was wrong and against the policy, which showed that her misconduct was intentional and dishonest. The seriousness of her misconduct was increased by the fact that she was a relief MOD at the time, a position with significant responsibility, the arbitrator said.
Although there were mitigating factors such as the worker’s length of service and quick acknowledgment of her misconduct, the LDB already considered them in determining the discipline and reduced the discipline from dismissal to suspension, said the arbitrator, adding that the worker’s reasons for not paying for the wine did not justify her actions.
In addition, the arbitrator found that the worker didn’t express “genuine remorse” or appreciate that the negative consequences from her suspension were the result of her actions.
“[The worker] seemed genuinely sorry for herself and for the fact that ‘this’ happened to her, rather than being remorseful for her actions,” said the arbitrator.
The union pointed to an employee who had committed similar misconduct at another LDB store who had received lesser discipline, but the evidence indicated that it involved a different management team at a different time, and this store’s management were unaware of that situation, said the arbitrator.
Allowed to continue working during investigation
However, the arbitrator found that allowing the worker to continue working and assign her MOD shifts while investigating the matter meant that the LDB continued to trust the worker with those responsibilities, despite her admission of wrongdoing. This undermined its argument that it was serious misconduct, said the arbitrator.
The arbitrator also noted that the LDB withdrew the allegation of breach of confidentiality but didn’t adjust the discipline. In light of this and the fact that the LDB didn’t treat the worker’s behaviour seriously at first, the arbitrator found that the discipline should be reduced to a 45-day suspension and a one-month ban on MOD relief work. See Government of the Province of British Columbia as Represented by the BC Public Service Agency v. British Columbia General Employees’ Union, 2023 CanLII 36155.